Will U.S. Sanctions Have Chilling Effect on Scholarly Publishing?

Treasury Department ruling puts IEEE on the spot, but could affect other groups, too

The U.S. Treasury Department, with Alexander Hamilton guarding the entrance in Washington, D.C., enforces sanctions on embargoed countries.

On 30 September, the U.S. Treasury Department (Washington, D.C.) informed the Institute of Electrical and Electronics Engineers (IEEE) that it must continue to limit members' rights in four countries embargoed by the United States: Cuba, Iran, Libya, and Sudan. The ruling means, among other things, that the IEEE, the world's largest engineering association (and the publisher of this magazine), cannot edit articles submitted by authors in those countries, making it effectively impossible for most such work to appear in IEEE publications.

If IEEE wishes to edit and publish the work, the Treasury Department informed IEEE, it will need to apply for a special license. That ruling could in turn have far-reaching consequences for hundreds of other U.S.-based scholarly publishers and professional organizations.

For nearly two years, IEEE has been negotiating with the Treasury Department's Office of Foreign Assets Control (OFAC), a powerful division charged with enforcing U.S. sanctions on embargoed countries. The trouble began in summer 2001, when a bank flagged an attempted transaction between IEEE and an institution in Iran; this prompted IEEE to investigate the OFAC regulations. When it determined that members in Iran and other embargoed countries were indeed subject to sanctions, the organization's leadership decided it had no choice but to comply—feeling, indeed, that failure to comply would be unethical. But that course of action has exposed IEEE to protests from IEEE members concerned about fairness and free speech, the indignation of members in sanctioned countries, and adverse press coverage.

In an open letter published in the October issue of IEEE Spectrum, IEEE President Michael S. Adler addressed those concerns [see "On Serving Members in Embargoed Countries," p. 8]. Now, referring to the OFAC ruling of 30 September, Adler says he's encouraged because it opens the door for IEEE to obtain licenses to be exempted from the normal rules.

In the meantime, however, IEEE members in the four affected countries are prohibited from being elevated to a higher-grade membership; using IEEE e-mail alias and Web accounts; accessing online job listings; and conducting conferences under the IEEE name [see "Services in Dispute"]. They still receive printed journals and other publications. In January 2002, when the IEEE first imposed its restrictions, it had over 1700 members in the embargoed countries, nearly all of them in Iran; only about 200 are still members. IEEE has about 380 000 members worldwide.

"Everyone at IEEE, top to bottom, is unhappy about the situation," says Adler. "We'll do whatever it takes, for as long as it takes, to get these issues resolved."

IEEE's situation

Although the IEEE is drawing heat for observing the sanctions, in fact the rules would apply to any professional society having exchanges with embargoed countries. An informal survey of a half-dozen other science and engineering organizations found wide variation in their compliance, and familiarity, with the sanctions. For example, one group refused to send any publications to embargoed countries but did allow researchers living there to publish in its journals. Another group said it placed no restrictions on members living in embargoed countries, but its online membership form did not allow Libya or Cuba to be selected as one's country of residence.

At the moment, though, IEEE is having to negotiate a tricky course with the Treasury Department, and it finds itself dealing with a formidable interlocutor. Created during the Korean War to freeze Chinese and North Korean assets, OFAC now has an annual budget of US $22 million and a staff of about 130.

PHOTO: AKIN GUMP

"OFAC's authority is extraordinary, because it is grounded in presidential authority and national security...they've got remarkably broad discretion."

–Wynn H. Segall

Sanctions imposed by OFAC are extremely broad and can be difficult to interpret, according to Wynn H. Segall, a partner with Akin Gump Strauss Hauer & Feld LLP (Washington, D.C.) and an expert on international trade. In general, exports of "goods, technology, and services" to embargoed countries are severely restricted, although the particulars differ from country to country. "There is a complete and universal ban on engaging in any kind of activity with an embargoed party or country, unless some exception has been provided," Segall says.

OFAC issues exemptions in the form of a license, on a case-by-case basis; presidential or legislative actions can also create exemptions. For example, the so-called Berman Amendment of 1994 provided for the export of "information and informational material," which is why the IEEE can still send journals to Iran and other embargoed countries.

Running afoul of the sanctions can bring fines of up to $10 million and even prison terms. "If you get it wrong, even if you think you acted in good faith, you can be found liable," Segall says. OFAC can and does penalize not just organizations but individuals within those organizations, and private citizens. "OFAC's authority is extraordinary, because it is grounded in presidential authority and national security," Segall says. "Compared to other police agencies in the federal government, they've got remarkably broad discretion and authority."

Although some of the sanctions, like those against Cuba, are long-standing, concerns about national security after 9/11 raised their profile anew. "The USA Patriot Act and subsequent regulations placed a greater burden for compliance on the private sector," Segall says.

Where the trouble began

Ironically, IEEE became aware of OFAC just before 9/11. IEEE staff were first alerted when the organization tried to pay for expenses related to the International Symposium on Telecommunications, a meeting that IEEE cosponsored in Tehran in the summer of 2001. "Our bank notified us—'Do you realize this isn't allowed?'—and we started looking at the regulations carefully," Adler recalls.

IEEE rejected a court challenge as too time-consuming and costly, according to Adler. Members affected by the new restrictions were informed of them in a letter sent in early 2002. At the same time, the editors in chief of IEEE's technical journals were told that manuscripts having at least one author from an embargoed country could no longer be edited; if reviewers deemed a manuscript publishable in its original form, though, it could be formatted before appearing in print.

"We've been working with OFAC to better understand what services we can still provide," Adler says. "But [OFAC] drew the line very explicitly on editing." In his letter to IEEE, OFAC director R. Richard Newcomb stated that "U.S. persons may not provide the Iranian author substantive or artistic alterations or enhancement of the manuscript, and IEEE may not facilitate the provision of such alterations or enhancements." Such enhancements include "reordering of paragraphs or sentences, correction of syntax or grammar, and replacement of inappropriate words."

Not surprisingly, journal editors have been "nearly unanimously opposed" to the new rules, says Douglas Verret, editor in chief of IEEE Transactions on Electron Devices . "It's a serious damper on intellectual enterprise," says Verret. "And it doesn't achieve the purpose for which it's intended—to make the U.S. more secure against terrorism. Logically, it should be the other way around. We should publish everything they know, and not publish what we know." Nevertheless, says Verret, he has complied with the rules. His journal carried two papers by Iranian researchers this year, only because "the manuscripts came in in pretty good shape."

IEEE members, particularly those in or from Iran, also expressed outrage. A petition circulated by a U.S.-based alumni group called the Sharif University of Technology Association garnered over 1200 signatures. Noting that a large number of the Sharif association also are members, senior members, and fellows of the IEEE and hold key positions in industry and academia, the petition complained that IEEE's actions were "in direct violation of its code of ethics, vision, mission, and constitution."

"From the Iranian point of view, the notion of being a restricted member flies in the face of their pride in being an IEEE member," says one person familiar with the controversy. "Membership is a symbol of status. And then suddenly they're told they're no longer part of the IEEE family. I can sympathize."

The fundamental question, says Verret, is how the IEEE can remain an international organization when it has to exclude or single out for special treatment certain nationalities. "Will we be forced to relocate overseas? Become a U.S.-only organization? It could force major changes in the charter of IEEE," he says.

What's ahead for IEEE, others?

In September 2002, IEEE leaders met with OFAC representatives to lay out how the sanctions were affecting its services to members. Three months later, IEEE sent a request seeking guidance from OFAC as to whether or not its publishing activities complied with existing sanctions. The recent ruling responds in part to that request, and it suggested that IEEE apply for a license to exempt manuscript editing. At press time, IEEE had just submitted its application but had not yet received a verdict.

The fact that OFAC took 10 months to respond is not surprising, says attorney Segall. "When you ask them for interpretative guidance, that often raises fundamental questions of policy that fall beyond OFAC's mandate. As a practical matter, when the sanctions regulations are ambiguous, it is generally better to apply for a specific license. Then they can just say yes or no or issue a 'no action' letter, indicating that the activity in question fits into an existing exemption."

If IEEE does get the nod from OFAC that manuscript editing is permitted, it won't necessarily mean that other organizations are free to do the same, Segall added. One of his firm's clients, whom he declined to name, was told by OFAC that academic institutions in Iran were allowed Internet access to publicly available scientific databases under certain circumstances. But, he warns, such rulings carry no "precedential authority"—they are specific to an organization and a particular set of facts. "Those who proceed on the basis of their own interpretation of the rules, without OFAC guidance, do so at their own risk," Segall says.

In other words, other U.S. scholarly organizations that plan to publish papers by researchers in Iran, Cuba, and the like will need to seek their own OFAC exemptions.